(1) For each mitigation bank, the Department of State Lands shall establish a system of resource values and credits.
(2) A credit from a mitigation bank may be withdrawn for a condition imposed on a permit in accordance with ORS 196.825 (4), for any other authorization issued in accordance with ORS 196.800 to 196.905 or to resolve a violation of ORS 196.800 to 196.905. At the request of a mitigation bank sponsor, the Director of the Department of State Lands may authorize the withdrawal of mitigation bank credits by a public benefit corporation as defined in ORS 65.001 or a public body as defined by ORS 174.109 designated by the director for the purpose of reserving credits for future use in accordance with this subsection. The director shall manage such transactions to ensure that each credit is used no more than one time to satisfy a use in accordance with this section.
(3) Credits from a freshwater mitigation bank may be used only as described in subsection (2) of this section for permits, authorizations or resolutions of violations approved within the service area of the mitigation bank, consistent with the mitigation bank instrument, unless the Director of the Department of State Lands determines, in exceptional circumstances, that it is environmentally preferable to exceed this limitation.
(4) Credits from an estuarine mitigation bank may be used only as described in subsection (2) of this section for permits, authorizations or resolutions of violations approved within the same estuarine ecological system.
(5) The director may not withdraw any credits from any mitigation bank until the director has:
(a) Taken actions sufficient to establish hydrological function of the mitigation bank site;
(b) Conducted other creation, restoration and enhancement actions to establish other wetland functions and values at the mitigation bank site; and
(c) Evaluated the results of the actions and determined that a high probability exists that the wetland functions and values of the mitigation bank site are equal to or greater than the functions and the values of the wetland area to be damaged or destroyed.
(6) The price for any mitigation credit shall be set at an amount that will compensate the state for all of the costs and expenses the state has incurred, and is expected to incur in establishing and maintaining that portion of the mitigation bank.
(7) The director shall not consider the availability or nonavailability of mitigation bank credits in deciding whether to grant or deny any removal or fill permit under ORS 196.600 to 196.905.
(8) The director annually shall:
(a) Evaluate the wetlands functions and values created within each wetland mitigation bank site; and
(b) Compare the current functions and values with those that the director anticipated that the mitigation bank would provide. If the director finds any significant disparity between the actual and anticipated functions and values, the director shall:
(A) Suspend the withdrawal of credits to that mitigation site; or
(B) Take prompt action to ensure that the anticipated functions and values are established.
(9) The director may not withdraw credits from the mitigation bank for a specific permit, authorization or resolution of a violation if the director determines that:
(a) The credits for that specific permit, authorization or resolution of a violation would not adequately maintain habitat or species diversity; or
(b) The mitigation bank site for which credits are proposed to be withdrawn is not sufficiently similar in wetland functions and values to the wetland area to be damaged or destroyed. [Formerly 541.565; 1997 c.444 §3; 2003 c.738 §7; 2005 c.22 §135; 2007 c.804 §70; 2007 c.849 §10]
Section: Previous 196.515 196.575 196.580 196.600 196.605 196.610 196.615 196.620 196.623 196.625 196.630 196.635 196.640 196.643 196.645 NextLast modified: August 7, 2008